Director of Public Prosecutions v Holloway
[2013] VCC 905
•12 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01734
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JERMAINE HOLLOWAY |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 June 2013 | |
CASE MAY BE CITED AS: | DPP v Holloway | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 905 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Manova | Office of Public Prosecutions |
| For the Accused | Ms M. Walker |
HIS HONOUR:
1 Jermaine Donatelle Holloway, on 30 January 2013 you pleaded guilty to one charge of aggravated burglary and one charge of recklessly causing injury. You at that time were before a jury. I entered those convictions and the jury were discharged in relation to those matters. The trial then continued on a charge of, as far as you were concerned, causing serious injury. On 22 February 2013 the jury acquitted you of that charge and the alternative. Accordingly, from your point of view the trial was successful.
2 The crime of aggravated burglary carries a maximum penalty of 25 years' imprisonment and reckless injury five year's imprisonment. You are 28 years of age and for these purposes I accept that you pleaded guilty to the matters which you were ultimately convicted of. There has now been a delay, through no fault of anybody's, of some two years, which is a factor, of course, I have to take into account. This has been a very complicated matter in terms of how it could be prosecuted and how it could be defended, and I accept that. There is no malfeasance at all in that delay, but nevertheless it exists.
3 Your plea of guilty in respect of those matters has to be viewed in the light that neither of your brothers or sister were convicted of them, and their trial was based on the same evidence. Accordingly, I think there is an additional benefit because of that. There was little utilitarian benefit in the plea because the trial continued, but of course being acquitted you get the benefit of that as well.
4 You have prior convictions, one a very odd one from 2004 where you received two years with a non-parole period of 12 months for stealing a motor vehicle. I am told that you were effectively taken to New South Wales, and for reasons that no one can explain the matter never came on until you had done 12 months. That is of no significance, other than it shows that you do understand what gaol is about. More concerningly is on 4 October 2004 you were sentenced in the Sunshine Magistrates' Court to six months' imprisonment to be actually served. That was appealed. On 24 January 2005 your appeal was allowed and you were given a six-month suspended sentence. That was for the crime of recklessly causing serious injury. The day after that County Court appeal you were convicted in the Magistrates' Court of another charge of recklessly cause serious injury, that being 25 January 2005. Those matters are now some eight years old but they show that you must understand what the potential consequences are of extreme violence, no matter what the background to it may be.
5 The circumstances surrounding this offending are complicated and I do not propose to go into great detail other than to basically explain what happened. On 8 January in 2011 a Mr Vandenbosch and your sister Alicia attended a party at the home of a Mr Stephen Wilson. Also present was a Mr Lincoln Arahunga. Everybody was drinking and it would seem to me drinking heavily. At approximately 8.30 pm there was an altercation between Mr Vandenbosch and Mr Wilson. I am not buying into the rights or wrongs of that. In any event, there was clearly violence and your sister maintained that she had been assaulted and may well have been. She contacted triple 0 and reported that she had been the victim of an assault.
6 Police attended at the house where she and Vandenbosch were. Clearly, on the evidence during the trial there was a significant amount of communication between you and your siblings, and in the ultimate a group of you returned to the Wilsons' house. I have to be careful with this because of the jury verdicts or non-verdicts. In any event, you were there. Three people came through the front door: Mr Vandenbosch, a Mr Faulkner, and a man known it would seem as Timmy. Mr Arahunga was extremely violently assaulted and lost an eye. You were acquitted of that; I must bear that very much in mind.
7
Shortly after that occurred, you and two others came through the back door. It was clear that there was an entry with the intention of assaulting, and
Mr Wilson was assaulted. Your understanding was that your sister and Vandenbosch I assume had been gang bashed or bashed and this was in retribution. On any basis, you were aware that there was a large group of you, including five, I would have thought, very strong men. It is apparent that the three of you went around the back door to cut off any escape. There is no direct evidence before me as to what you believed to be inside. I do not know what your sister or Vandenbosch had told you, but inside was Mr Arahunga, as I have indicated, Mr Wilson, who might have been the precipitator of all this, two women and two children. You, and I accept others, then assaulted Mr Wilson. His injuries were not graphic and I must say I found Mr Wilson a somewhat unsatisfactory witness.
8 To have at least six people barging into a house in the middle of the night where there are children present, intent upon violence, is a truly terrifying experience. Whatever might have been the rights and wrongs of all this, you just cannot do that and I have no doubt that you know that you just cannot do that. There are a number of victim impact statements that have been tendered and, of course, I have read them and taken them into account. They relate very much to the dreadful injury sustained by Mr Arahunga. As I have indicated, you are definitely not to be sentenced for that.
9 This plea really came down to the fact that there has to be a custodial sentence. There was no real argument as to the effective range of that sentence. The submissions of your counsel were that in all the circumstances it could be wholly suspended. It is in my view a serious example of an aggravated burglary. I sentence you on the basis that there were no weapons involved, but as I have indicated, the sheer weight of numbers in that circumstance is almost the epitome of what is unlawful about aggravated burglary. General and specific deterrence must play a part in the sentencing process, as well as denunciation and an appropriate punishment.
10 The range, having analysed it, and I will do this again in a moment, seemed to me that it was somewhere between two to three years. I have read a number of times the remarks of Nettle JA in Malikovski that whenever a sentence fits within the suspendable range, all things being equal, it would be unusual where not suspending makes it manifestly inadequate. It is clear from that decision that His Honour may not have given the same decision that the original judge did, comments that I am very much aware of.
11 I then looked at matters personal to you to see whether that can be made out in this situation of serious offending. I have before me two reports, the first one from Alison Mynard, a clinical psychologist. She said, and laudably brief, "From my assessment, Mr Holloway experiences trauma and related symptoms from childhood experiences. They include hyper-arousal, impulsivity, depression, panic, anxiety and low self-confidence. He has developed an alcohol problem to self-medicate for his psychological issues. He also used amphetamines", that is not a problem here, "and found he had positive feelings on this drug that he had otherwise struggled to experience. He also suffers from claustrophobia and he already has a hearing problem".
12 There was a further report, and indeed a relatively lengthy one, from an Angeline Swan, a psychologist, and I will just deal with that briefly. You would appear to be significantly deaf. You described your history to her of being brought up in New Zealand, initially raised by your paternal grandparents due to your parents' alcohol use. You stated to the psychologist at the age of three your grandmother died and you returned to live with your parents. You describe - and I do not think I have to go into any detail here, everyone has got a copy of this - the most extreme violence in the house and you used to be physically abused by your mother. That included kicking, hitting, and punching to a very significant degree. Your father was violent towards your mother. You as a small boy watched all this in the context of alcohol. You would be blamed for all sorts of things, and it is anybody's guess what that sort of experience has on a young boy.
13 In any event, the family moved to Australia in 1998 because your mother wanted a fresh start. Your mother continued to be physically and emotionally abusive and your parents separated at some point around about 2003/2005, which I note is when your prior convictions for violence or serious violence come into play. You said to the psychologist that at any early age you felt responsible for your siblings and would look after them in an alcoholic home. You would feed them, change their nappies, clean the house, and purchase food. It would seem on the material before me that in a sense you became father to your siblings. This offending occurred in circumstances where I accept that you were avenging, if that not be an unfair word, what you saw as an assault upon your sister and that, whilst it in no way excuses it, at least places it when one knows of your background in an understandable circumstance.
14 You are now 28. It would appear that the violence and abuse and responsibility thrust upon you went on for a very significant period of time. You have now been in a relationship for a period of some four or five years as I understand it and have a small child. There are also two other children not of that relationship, approximately 12 and six. You have made a success of that relationship, it would seem. Were you to be incarcerated I accept that it would have a significant effect upon you for feelings of guilt for essentially abandoning them then for whatever that period of time was.
15 In terms of educational history, you completed year 10. Again, I can understand this, that you, because of your hearing, attended what you described as "deaf camps" and learned to use sign language. You said that you attended mainstream schools and were required to wear hearing aids, which you hated, and you said that you were ashamed of them. You were teased and bullied because of them.
16 As far as work history is concerned, you had lots of jobs. You worked at a Coles Storage factory for six years which would indicate that when you wish to work you certainly can do so. I understand that you in fact were made a supervisor in that employment but lost the job through having to attend court. You commenced consuming alcohol at the age of 13 years with family members, and that is hardly surprising. There was no regular use of drugs, and I do not think that is a problem, but it would seem that on a regular basis you felt the need to drink and to be intoxicated. You had depressive symptoms when you were about ten, and again severe depressive symptoms approximately two years ago when a child passed away. At the time of this you were not using illicit substances and you claim that you were not intoxicated. Whether that be so, I have no idea. The report goes on and says that you are a moderate risk for future acts of violence. It is said that you "described a chaotic and abusive childhood where you were routinely exposed to alcohol use and domestic violence. It appeared that this experience normalised the use of alcohol and aggressive behaviour for Mr Holloway. He reported feelings of responsibility for his siblings from a young age, which appear to have continued throughout his life and contributed to the current offending because he felt obliged to stand up for his sister and support his family".
17 The psychologist goes on to say that you, in her view, suffer from a major depressive disorder, and whilst you are not undergoing a major depressive episode at the present time, I would take the view that it would make it harder for you to undergo a custodial sentence than for a prisoner who did not have that depression. That depression may well be extenuated by your being separated from your young family.
18 You have acknowledged poor decision making and increased alcohol use. I do not think, and it was never put to me, that Verdins played any part in a lack of moral culpability in this circumstance. Very significantly in this matter, and I think the crux of it really, comes down to questions of parity. One co-accused, a Jason Vandenbosch, pleaded guilty at an early stage. He received an overall sentence in excess of seven years, but for these particular charges of aggravated burglary and causing injury he received a total of about 34 months. He was also sentenced for intentionally causing serious injury to Lincoln, and I think that his sentence is not of great assistance with yours. Of more assistance is the sentence imposed upon Hayden Faulkner.
19 Hayden Faulkner gave evidence in the trial and was clearly disbelieved by the jury. He received a sentence on the aggravated burglary of 13 months and three months on the reckless injury which was wholly concurrent, so his sentence was 13 months. He was discounted because he had virtually as I understand it no prior convictions and he gave evidence for the Crown. Having watched the trial, it is hard to escape the conclusion that the probabilities are that Mr Faulkner has been extraordinarily lucky. On one view of the evidence, that is the people who were in the house, he has to be one of the assailants of Lincoln. He receives no penalty for that because of the understandable, on both sides, deal that he did.
20 His Honour Judge Saccardo when sentencing him prior to the trial said:
21 "Given the exceptional circumstances which arise in this case borne of your self-reporting and your undertaking to give evidence against your co-accused, I am satisfied that it is appropriate to wholly suspend the sentences which I have imposed, for a period of 24 months and that to do so is clearly in the interest of justice."
22 I take it from that that the aspects of giving evidence for the Crown and the undertaking were of real significance in that sentence being suspended. Even if one simply doubled the sentence because of the, in effect, early plea of guilty and the giving of evidence against others or the undertaking to give evidence against others, one still comes down to 26 months. Having looked at it, I think that is about right for you. You have been through a trial in which you were ultimately vindicated for what you had pleaded not guilty to, and whilst it is not a mathematical matter of what sort of discounts are given, it seems to me clear that without Faulkner the trials could never have really gone ahead so his assistance was of real significance, at least in theory. In practice might have been a different thing.
23 If I give you a sentence of 28 months for the aggravated burglary with three months for recklessly causing injury to be served wholly concurrently, do I in the interests of justice suspend it? I have given this matter anxious thought. I have tried to put out of my mind my view that Faulkner has been extraordinarily lucky and got away with something. I have tried to put out of my mind the very extraordinarily serious consequences that happened to
Mr Arahunga. In the end I have formed the view that justice dictates that there must be an active component of that sentence and I think, whilst it is not predicated on it, the situation is that you have prior convictions for recklessly causing serious injury, one of which you were sentenced to be imprisoned but did not do it because you were successful on appeal. It cannot be said that you are not aware of the consequence of such offending. However, in the overall situation, bearing in mind your somewhat distressing background, the fact that you are in a relationship, that you have a small child, that you have complied with the conduct of the trial and all other matters, I think there does not need to be an extended period that you actually serve.
24 Accordingly, you are sentenced to be imprisoned for 28 months as I have indicated and I direct that 22 months of that be suspended for a period of three years. I am concerned about a s.6AAA here. I do not think I should because of the acquittal. It is the result of a trial. I think it is pointless.
25 MS MANOVA: He did plead, Your Honour, to the aggravated burglary.
26 HIS HONOUR: No, I realise that, but on trial. I think the s.6AAA here would be really misleading because I do not want to say what would happen if he had been convicted by a jury, because he almost certainly would not have been, if you follow what I am saying. It does not invalidate it. Perhaps just to be on the safe side I will say that but for a plea of guilty he would have been sentenced to be imprisoned for four years with a minimum of two and a half. I make it clear that is off the top of my head because that would have taken it outside suspendable range. There is no pre-sentence detention, is there?
27 .COUNSEL: No, Your Honour.
28 HIS HONOUR: All right, there is six months to serve. He can go into custody now.
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